I'ON, LLC v. Town of Mt. Pleasant, No. 25048.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WALLER, Justice
• Citation: 526 S.E.2d 716,338 S.C. 406
• Decision Date: 17 January 2000
• Docket Number: No. 25048.
• Parties: I'ON, L.L.C., formerly known as The Graham Company, Respondent, v. TOWN OF MT. PLEASANT, Respondent, v. James A. Renneker and Henry G. Thomas, IV, Appellants.

338 S.C. 406
526 S.E.2d 716

I'ON, L.L.C., formerly known as The Graham Company, Respondent,
v.
TOWN OF MT. PLEASANT, Respondent,
v.
James A. Renneker and Henry G. Thomas, IV, Appellants

No. 25048.

Supreme Court of South Carolina.

Heard December 1, 1999.

Decided January 17, 2000.

338 S.C. 409

Stephen P. Groves, Sr., Jonathan L. Yates, and Stephen L. Brown, all of Young, Clement, Rivers & Tisdale, L.L.P., Charleston, for appellants

G. Dana Sinkler and Andrea H. Duenas, both of Warren & Sinkler, Charleston; and Stephen A. Spitz of Columbia, for respondent I'On, L.L.C.

R. Allen Young of Mt. Pleasant, for respondent Town of Mt. Pleasant.

WALLER, Justice:

This case raises the novel issue of whether zoning by initiative and referendum is allowed in South Carolina. Respondent I'On, L.L.C. (Developer) brought a declaratory judgment action challenging the validity of a proposed voter referendum on a zoning matter in the Town of Mt. Pleasant (Town). The circuit judge struck down the proposed referendum after a non-jury trial. James A. Renneker and Henry G. Thomas, IV (appellants), who participated in a citizens' effort to block the project, appeal. We affirm.

FACTS

In 1995, Developer asked the Mt. Pleasant Board of Planning and Zoning (the Zoning Board) to rezone a 243-acre tract from R-1 to Planned Development (PD). R-1 zones are restricted primarily to single-family houses, while PD zoning allows a mix of residential and commercial uses. Developer wanted to build a more traditional neighborhood containing a variety of development, including commercial locations. PD zoning of the tract was allowed under the land use master plan Town had approved several years earlier. The Zoning Board recommended approval of Developer's rezoning request but the Town Council, which makes the final decision on all zoning matters, denied it in a 5-4 vote.

In 1997, Developer resubmitted its rezoning request after modifying portions of the project. The Zoning Board again recommended approving the request. Many Town residents

338 S.C. 410

spoke for and against the project at two council meetings. The Town Council gave final approval to an ordinance granting PD zoning to the tract in a 6-3 vote March 11, 1997

Citizens opposed to the project immediately launched a petition drive to submit a proposed ordinance to the Town Council that would restore the zoning of the tract to R-1 or, if the Town Council rejected the proposed ordinance, to submit the matter to voters in a referendum. See S.C.Code Ann. § 5-17-10 and -30 (1976 & Supp.1998) (establishing initiative and referendum process). Some 4,500 residents signed the petition. In July 1997, Charleston County voter registration officials certified that the petition contained more than the fifteen percent of the qualified Town electors required by Section 5-17-10.

Developer filed a lawsuit that included a declaratory judgment action and a motion for a temporary restraining order, seeking to prevent the Town Council from taking any action on the petition. A circuit judge issued a temporary restraining order. After a hearing, another circuit judge lifted the TRO to allow the Town Council to take whatever action it deemed necessary on the petition.

In August 1997, the Town Council voted 6-3 to reject the proposed ordinance and instead approved a resolution placing a revised version of the ordinance on the ballot in a special election set for November 1997. The referendum question stated:

SHOULD THE TOWN COUNCIL OF THE TOWN OF MOUNT PLEASANT REPEAL ZONING ORDINANCE NUMBER 97010 PASSED ON MARCH 11, 1997, WHICH REZONED THE APPROXIMATELY 243 ACRES MORE OR LESS, BORDERED BY HOBCAW CREEK AND MATHIS FERRY ROAD, KNOWN AS THE JORDAN TRACT, AND TO BE KNOWN AS I'ON, FROM R-1, SINGLE FAMILY RESIDENTIAL TO PD, PLANNED DEVELOPMENT, AND AT THE SAME TIME HAVE THE JORDAN TRACT REVERT TO R-1 ZONING?

The resolution stated the italicized information was modified or added to the proposed ordinance contained in the petition in order to correct the ordinance date and identify Developer.

338 S.C. 411

The circuit judge subsequently held a non-jury trial and struck down the proposed referendum. The judge based his ruling on the sole ground that zoning matters could be decided in Town only under the specific procedures set forth in Chapter 7 of Title 6, which Town has adopted in its zoning code, and not by the general initiative and referendum process contained in Chapter 17 of Title 5. The judge believed the initiative and referendum process was totally at odds with the detailed procedures set forth in Chapter 7 of Title 6; therefore, the Legislature could not have intended to allow voters to decide complex matters such as zoning in a referendum. The judge denied appellants' motion for reconsideration and reiterated he was deciding the case only on the one ground explained in the original order

STANDARD OF REVIEW

This case, in which the essential facts are largely undisputed, raises a novel question of law.¹ We are free to decide this question of law with no particular deference to the lower court. See S.C. Const. art. V, §§ 5 and 9; S.C.Code Ann. §§ 14-3-320 and -330 (1976 & Supp.1998); S.C.Code Ann. § 14-8-200 (Supp.1998) (granting Supreme Court and Court of Appeals the jurisdiction to correct errors of law in both law and equity actions).

ISSUES

1. Did the circuit judge err in ruling that zoning matters in Town may be decided only under the specific procedures set forth in Title 6 and not by the general initiative and referendum process contained in Title 5?

2. Must a party who prevails in the lower court raise an "additional sustaining ground" to the judge and obtain a

338 S.C. 412

ruling in order to preserve that issue for appellate review?

DISCUSSION

1. ZONING BY INITIATIVE AND REFERENDUM

Appellants argue the circuit judge erred in striking down the proposed referendum. Appellants contend the Legislature intended for the provisions in Titles 5 and 6 to act in conjunction with one another. They believe the two titles are alternative and complementary means of enacting zoning legislation, and the adoption of the detailed zoning mechanism of Title 6 does not prohibit the enactment of zoning ordinances pursuant to the Title 5 initiative and referendum process. Appellants argue the Legislature has decided that "any ordinance," except for ones explicitly prohibited, may be enacted by initiative and referendum.

We disagree with appellants and conclude the Legislature could not have intended to allow zoning by referendum for two reasons. First, the conflict between the relatively free-ranging Title 5 initiative and referendum process and the elaborate, detailed zoning procedures contained in Title 6 are incompatible and hopelessly inconsistent. Second, allowing zoning by initiative and referendum potentially would nullify zoning and land use rules developed after extensive debate among a variety of interested persons.

A. INCOMPATIBILITY OF THE TWO PROCESSES

The cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent whenever possible. Bankers Trust of South Carolina v. Bruce, 275 S.C. 35, 267 S.E.2d 424 (1980). A statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. State v. Baker, 310 S.C. 510, 427 S.E.2d 670 (1993). Statutes in apparent conflict should, if reasonably possible, be construed to allow both to stand and to give effect to each. Chris J. Yahnis Coastal, Inc. v. Stroh Brewery Co., 295 S.C. 243, 368 S.E.2d 64 (1988). Generally, specific laws prevail over general

338 S.C. 413

laws, and later legislation takes precedence over earlier legislation. Lloyd v. Lloyd, 295 S.C. 55, 367 S.E.2d 153 (1988).

S.C.Code Ann. § 5-17-10 (Supp.1998), first enacted in 1962, provides that "electors of a municipality may propose any ordinance, except an ordinance appropriating money or authorizing the levy of taxes." The petition containing the proposed ordinance must be signed by qualified electors of the municipality equal in number to at least fifteen percent of the registered voters at the last regular municipal election.

S.C.Code Ann. § 5-17-30 (1976), also enacted in 1962, requires the council to submit the proposed ordinance to voters in a referendum when it fails to pass the ordinance or passes it in a form substantially different from that set forth in the petition.²

The above statutes are found in Title 5, which contains various provisions governing municipal corporations, ranging from incorporation and form of government to building codes and streets and sidewalks. See S.C.Code Ann. §§ 5-1-10 to 5-37-90 (1976 & Supp.1998).

Until this year, Chapter 23 of Title 5 contained zoning and planning provisions for municipalities, while Chapter 7 of Title 6 contained zoning and planning provisions available to both municipal and county governments. The "South Carolina Local Government Comprehensive Planning and Enabling Act of 1994" repealed existing zoning and planning provisions in Title 5 and Title 6 as of May 3, 1999. Act No. 355, 1994 Acts 4010. The 1994 Act combined the provisions into a single, comprehensive set of provisions available to local governments. S.C.Code Ann. §§ 6-29-710 to -960 (Supp.1998) (codifying portions of 1994 Act).³

338 S.C. 414

Under Title 6, "[z]oning ordinances must be for the general purposes of guiding development in accordance with existing and future needs and promoting the public health, safety, morals, convenience, order, appearance, prosperity, and general welfare." S.C.Code Ann. § 6-29-710(A) (Supp.1998). Goals include the prevention of overcrowding of people, buildings, and traffic; the preservation of historic and ecologically sensitive areas; and the adequate provision of services to residents. Id.

Zoning regulations must address numerous factors, including building size, density of development, parking, and buffer areas. A...